Tolbert: Arkansas GOP Files Lawsuit Challenging Governor’s FOIA Exemption Claim

Arkansas has a fairly good Freedom of Information Act thanks in large part to the work of Gov. Winthrop Rockefeller in the 1960‘s.  However, a giant-size hole exists in the law creating an exemption for the “working papers” of the Governor, Attorney General, and State Legislature.  Over the years, these officeholders have claimed this as a broad blanket exemption for pretty much anything they do not want to give up.

A lawsuit filed Monday (Dec. 2) by Megan Tollett, the executive director of the Republican Party of Arkansas, may test just how broad this exemption is.  The lawsuit filed in Pulaski County challenges a recent denial from Gov. Beebe’s office of a request the state GOP made for documents pertaining to Governor appointments.

The request made by Tollett on October 31, 2013 asked for documents or records “received by the Governor’s Office from individuals seeking an appointment to any state board or commission” for the period beginning January 1, 2012 through the date of the request.

For some background on why this request may have been filed, I refer you to a story I did in May between a connection between the person on the Governor’s staff who is in charge of coordinating appointments and a fundraising consultant for the Ross for Governor and Pryor for Senate Campaign. (Psst – It’s the same person.)

“News reports have documented that there is an apparent nexus between the Governor’s staff responsible for appointments to state boards and commissions and the fundraising staffs of both the Ross and Pryor campaigns. After careful examination of campaign finance reports, we felt that this action was warranted to further determine if such a nexus existed and to ensure that business was being conducted in an open and public manner by the Governor,” said Tollett in a statement on Monday afternoon.

Anyway, on November 1, Tollett got the same letter I have received from Beebe’s office several times saying the request is denied under ACA 25-19-105(b)(7) as it falls into the category of “unpublished memoranda, working papers, and correspondence of the Governor.”

Tollett responded on November 21 via a letter from her attorney Bilenda Harris-Ritter to the Governor’s attorney saying they disagreed with the denial of the document request.  They argued that “the documents requested were not prepared by the Governor nor anyone in his office” but from outside individuals. In addition, they argue that the documents were not “preliminary drafts or memoranda, but final documents.”  The letter requested the documents by November 26 to avoid asking for relief from the court.

Obviously, this request was not fulfilled as the lawsuit was filed today.  The lawsuit makes basically the same argument spelled out above and asks for the court to find that the Governor failed to comply with Arkansas’ FOIA and to provide the documents requested.

The Governor’s office declined to comment other than to say that they plan to fight the lawsuit.

This one will be interesting to watch.  If successful, the GOP lawsuit could begin the process of chipping away at the blanket exemption the Governor’s office currently claims under the FOIA.  I will also point out as I have in the past that even if FOIA applies – and that will be determined by the court – the Governor can still release the documents if he chooses to.  There is nothing in the law that says just because FOIA does not require documents to be released that the official cannot do so anyway if he chooses.

A copy of the lawsuit and related document can be seen here.